' SH. RIAZ AHMAD, J.---Appellant Nasar Mehmood was tried by a Court constituted under the Suppression of Terrorist Activities Act at Gujranwala on the charge under section 9 read with section 13 of the Arms Ordinance for keeping in his possession a papish gun (automatic submachine gun). Vide judgment dated 27th of March, 1991, the learned Judge of the Special Court found the appellant guilty on the said charge and convicted and sentenced him to undergo rigorous imprisonment for four years, and to pay fine of Rupees five thousand, or in default thereof, to undergo further R.I. for six months. The appellant was also given the benefit under section 382(B), Cr.P.C.
2. Aggrieved by the aforesaid conviction and sentence, the appellant has preferred this appeal which shall be disposed of through this judgment.
3. The prosecution case, in brief, is that on 19th of November, 1990 Altaf Hussain S.H.O. P.W.3 had :received the information that some proclaimed offenders required in different cases registered at Police Station Jalapur Jattan were present in the Dera of appellant, whereupon, the S.H.O. formed a raiding party consisting of Sub-Inspector, A.S.I. and 10/12 constables. One D.S.P. and an Inspector also joined the raiding party. Accordingly, on 19th of November, 1990 at 6-00 a.m. the police party raided the Dera of the appellant, and as soon as the police party reached the Dera, on its sight, one Babar alias Babri and the appellant took to their heels towards the northern side of the Dera. They were chased by the police party, and after a distance of seven miles, the appellant was ultimately apprehended near village Noora Mandiala. At the time of his arrest, the appellant was having a papish gun P.1 without any licence, which was taken into possession by S.H.O. P.W.3, it was unloaded and 30 live cartridges P.2/1-30 were also taken into possession, vide Memo. Exh.PC attested by Qamar Hussain A.S.I. P.W.2 and Munawar Hussain Inspector (not produced). P.W.3 S.H.O. then drafted the complaint, and sent the same to the Police Station Saddar Jalalpur Jattan, where, the formal F.I.R. Exh. PA was drafted by Riaz Ahmad A.S.I. P.W.1.
4. To prove its case at the trial, the prosecution placed reliance upon the testimony of two recovery witnesses namely Qamar Hussain A.S.I. P.W.2 and Altaf Hussain S.H.O. P.W.3. The Court also summoned Sh. Abdul Rashid, Fire Arms Expert as C.W.1 in order to ascertain the nature of the papish gun, who stated that it was 9mm bore automatic rifle and was extremely dangerous, because it could cause burst and thus fell within the definition of submachine gun.
5. When examined under section 342, Cr.P.C., the appellant denied the recovery, and made the following statement: "I am innocent. I was falsely implicated in this case by my first cousin Akhtar who became inimical towards us as I refused to give my sister in marriage to him. He got me challaned falsely in connivance with the Police."
6. The appellant also entered the witness box, and made statement under section 340(2), Cr.P.C., and also led the defence evidence, and produced two defence witnesses namely Muhammad Rafique and Faiz Ullah D.Ws. 1 and 2 respectively. D.W.1 stated that the appellant was arrested from his house in his presence, and nothing was recovered from him. In cross-examination, he submitted that Mushtaq Ahmad, Chairman Ushar and Zakat Committee and Mst. Shahnaz Akhtar were also present when the appellant was arrested. D.W.2 also made the similar statement to that of D.W.1.
7. With the assistance of the learned counsel for the appellant, and the State we have carefully gone through the judgment, the relevant record and have also heard the learned counsel at length.
8. The learned counsel for the appellant drew the attention of this Court towards the various discrepancies in the statements of two recovery witnesses. There are discrepancies as to the number of persons forming the raiding party and the existence of reeds in jungle during the chase.
9. As far as such discrepancies are concerned, they do not go to the root of the case. In fact, nothing turns upon these discrepancies, and being immaterial do not at all affect or demolish the prosecution in any manner; thus, no heed can be given to such discrepancies.
10. The learned counsel next contended that it was incumbent upon the S.H.O. P.W.3 to have made at least some persons from the public to join the chase as well as to watch the recovery proceedings.
11. We are afraid that the contention has no force; in asmuch as, the raiding party was formed with a view to apprehend the proclaimed offenders, and at the time of the raid, the appellant took to his heels. Thus, it was impossible to join any person from the public to chase appellant and for witnessing the recovery at his instance. In such like cases, no witness from the public comes forward, because possibility of exchange of firing cannot be ruled out, therefore, in our society due to lack of civic sense and for other reasons, nobody would be willing to put his life on stake. In this view of the matter, we are of the view that the prosecution has proved its case which cannot be disbelieved on account of the absence of any person from the public to have joined the chase and to watch the recovery proceedings.
12. After careful consideration of the entire evidence we are of the view that the statements of the eye-witnesses are consistent, and the prosecution has proved its case beyond any shadow of doubt against the appellant. Hence, we do not find any merits in this appeal, which is dismissed accordingly. However, the question of sentence needs consideration, therefore, we would modify the same by reducing it to three years' R.I. Similarly, the sentence of fine is also reduced to Rs.2,500 or in default thereof, the appellant shall suffer R.I. for B three months. He shall also be given benefit under section 382-B, Cr.P.C.